Improper Delegation Of Judicial Authority In Child Custody Cases: Finally Overturned

Improper Delegation Of Judicial Authority In Child Custody Cases: Finally Overturned

Dale Margolin Cecka *

The appellate courts of this Commonwealth are not unlit rooms where attorneys may wander blindly about, hoping to stumble upon a reversible error.

These words of Judge Humphreys, denying a 2016 child custody appeal, are cogent. Yet four months later, in another appeal, Judge Humphreys joined a unanimous decision overturning a common provision in a custody order. In Bonhotel v. Watts, the Court of Appeals of Virginia held that judges cannot delegate judicial decision making power in child custody cases to outside professionals. This sounds obvious, but such delegation is actually ordered all the time. In final orders, Virginia’s trial court judges frequently give discretion to guardians ad litem (“GALs”), as well as therapeutic counselors, to determine issues such as the frequency, length, and substance of parent-child visitation.

Continue reading


* Clinical Professor of Law and Director of the Jeanette Family Law Clinic, University of Richmond School of Law, Richmond, Virginia. J.D., 2004, Columbia Law School; B.A., 1999, Stanford University. The author would like to thank Mark Branca and Jenni Lyman for their invaluable research assistance. The author has practiced domestic relations and child welfare law for over fourteen years in trial courts in Virginia and New York. Upon graduation, Professor Cecka was selected as a Skadden Fellow at the Legal Aid Society, representing children in foster care in all five boroughs of New York City, and later, as a Teaching Fellow and the Director of the Child Advocacy Clinic at St. John’s School of Law which serves Queens and Long Island. In 2008, Professor Cecka was appointed by the University of Richmond School of Law to create and launch the Family Law Clinic, which was the first, and still only, pro bono service for litigants in central Virginia on contested domestic relations matters. Under Professor Cecka’s supervision, third-year law students try cases in the Juvenile and Domestic Relations Courts and the Circuit Courts of Richmond, Henrico, Chesterfield, Petersburg, and Hanover. Professor Cecka is also Of Counsel in domestic relations matters to the law firm Winslow and McCurry in Chesterfield, Virginia, and has made appearances in Clarke and York Counties in that capacity.

Improper Delegation Of Judicial Authority In Child Custody Cases: Finally Overturned

The Evolution Of E-Commerce In Virginia Real Property Transactions

Ronald D. Wiley, Jr. *

The General Assembly amended section 17.1-258.3:1 of the Virginia Code in 2017 to provide that “[a]ny clerk of a circuit court with an electronic filing system established in accordance with this section may charge a fee not to exceed $5 per instrument for every land record filed by paper.” The amendment also deleted the five-dollar fee that Code section previously authorized for electronic recordation of any instrument. The obvious purpose of the amendment is to encourage electronic filing of land records where possible.

Continue reading


* Underwriting Counsel, Old Republic Title Insurance Company. J.D., 1983, University of Richmond School of Law; Virginia State Bar, Real Property Section, Board of Governors, Treasurer. Since 2013, Mr. Wiley has assisted in course instruction on real estate transactions and financing at the University of Richmond School of Law.

Improper Delegation Of Judicial Authority In Child Custody Cases: Finally Overturned

COMMENT: A Step Toward Robust Criminal Discovery Reform In Virginia: The Disclosure Of Witness Statements Before Trial

Jennifer Horan *

Calls for reform to the Virginia criminal discovery rules have been occurring for over a decade. Those calling for reform were optimistic after the Supreme Court of Virginia put together a special committee to propose new reforms to the current criminal discovery rules. The Special Committee on the Criminal Discovery Rules (“Special Committee”) spent nearly a year debating new proposed rules for criminal discovery and presented their final report to the Supreme Court of Virginia on December 2, 2014. However, on November 13, 2015, the Supreme Court of Virginia declined to adopt the changes proposed by the Special Committee in a short, two-sentence order.

Continue reading


* J.D. Candidate, 2018, University of Richmond School of Law. B.A., 2015, Virginia Polytechnic Institute and State University. I would like to extend a special thank you to Professor John Douglass for his invaluable feedback and guidance throughout the writing process. I would also like to thank Callaghan Guy for her helpful suggestions and support. Finally, I wish to express my gratitude to the staff and editorial board of the University of Richmond Law Review for their help in preparing this comment for publication.

Improper Delegation Of Judicial Authority In Child Custody Cases: Finally Overturned

COMMENT: Howell v. McAuliffe

L. Michael Berman *

In the summer of 2016, the Supreme Court of Virginia decided Howell v. McAuliffe. The case made national headlines as it was in response to Governor Terry McAuliffe’s attempt to restore the voting rights of more than 206,000 convicted felons. Among the petitioners in the case was the Speaker of the Virginia House of Delegates, William J. Howell; Majority Leader of the Virginia Senate, Thomas Norent, Jr.; as well as four other registered voters. The petitioners sought an injunction to prevent the Governor from granting pardons on a “blanket” basis. The court ordered the injunction and issued a writ of mandamus instructing precisely how the McAuliffe Administration was to rescind the recently restored voting rights, as well as how to proceed with restorations in the future.

Continue reading


* J.D. Candidate, 2018, University of Richmond School of Law. B.S., 2015, George Washington University. I would like to extend a special thank you to Professor W. Hamilton Bryson for his invaluable guidance and support throughout the duration of this project. I also wish to thank the members of the University of Richmond Law Review for their time and effort preparing this comment for publication.

You Could Have Told Me That in the First Place: Five Tips that Might Have Saved a Young Lawyer a Lot of Trouble

You Could Have Told Me That in the First Place: Five Tips that Might Have Saved a Young Lawyer a Lot of Trouble

Jay O’Keeffe, You Could Have Told Me That in the First Place: Five Tips that Might Have Saved a Young Lawyer a Lot of Trouble, 52 U. Rich. L. Rev. Online 53 (2017).

Click here to download PDF.


Jay O’Keeffe *

I will open with a confession: I have very, very little to contribute to legal scholarship. My day-to-day work as a lawyer and a parent keeps me busy. My career to date as a generalist has not led me to develop any great substantive expertise in a particular area of the law. Even my war stories are boring because they cluster around briefs, procedural defaults, and oral arguments.

But I do have one thing to offer. I have been lucky in my career to work in “Biglaw,” then at a medium-sized firm of about fifty lawyers, and most recently at a small firm of just three lawyers. I made my share of mistakes at each stop—some routine, some painful, and almost all avoidable. For the most part, I have been paying attention along the way. And so what I have to share with you is a set of five tips, in no particular order, that could have prevented about eighty percent of my missteps as a young lawyer.

1.  Learn to Write

In modern America, you will be able to distinguish yourself in most fields of endeavor just by being a decent technical writer. When I say “a decent technical writer,” I do not mean being technically good as a writer—that is, knowing and following the rules—but being competent in technical writing, the specialized genre of nonfiction writing required to communicate with others in your field. This is especially true for lawyers because we rely so much on written communication that we are basically professional writers.

But despite being professional writers, we often show little interest in our craft. Writing is a skill, and one that you can improve with careful practice. In my experience, improving your writing has the highest return on investment of anything you can do with your free time as a young lawyer. It does not just make you a more effective lawyer (although it does do that); it also opens up worlds of business development opportunities.

With that in mind, here is a simple, workable strategy to make yourself a better writer.

Read good writing. With a few notable exceptions, legal writing does not count. Instead, immerse yourself in nonfiction by talented writers. Michael Lewis, Malcolm Gladwell, and David Epstein are great role models. Note how they use concrete examples to illustrate abstract points (and, by extension, how they avoid meaningless formalisms). Pay attention to the way they engage contrary arguments, and compare it to the paranoid hysteria that you see in your average legal brief. Even the rhythm and beats of their writing are worth emulating. Try finding a page that you like and typing it into your laptop, just to get a better sense of how the writing flows.

Learn the rules. You will internalize most of the important rules just by reading good writers, but it never hurts to have a copy of The Redbook handy.[1] I know that everyone swears by Warriner[2] and Strunk and White,[3] but The Redbook has been my go-to source for years. A good usage guide and legal dictionary are also important.[4]

Do your homework. The world is not overflowing with good books about legal writing—but those that we have are quite helpful. When I worked at a mid-size firm, I gave every single new associate in our practice group copies of Making Your Case[5] and The Curmudgeon’s Guide to Practicing Law.[6] Both are outstanding; word for word, Herrmann’s “Memorandum from a Curmudgeon”[7] is the most useful legal-writing advice that I have ever received. The Winning Brief[8] is priceless; its suggestions about structuring the writing process alone justify its cost. Ross Guberman’s Point Made offers a bevy of actionable tips and actual examples from outstanding briefs.[9] Typography for Lawyers will open your eyes to a welter of persuasive tools hidden in your word-processing application.[10] On Writing,[11] On Writing Well,[12] and The Sense of Style[13] are not limited to legal writing, but also offer excellent advice.

Practice deliberately. If you are reading Gladwell and Epstein, then you will soon encounter the concept of deliberate practice: intentionally, thoughtfully, and painfully working to improve the weakest parts of your craft so that, over the course of years, you can improve your abilities. Apply those lessons to your writing. Identify your weaknesses and work consciously to improve them.

To further stand out, you can apply a similar method to improve your public speaking: (1) buy good books on public speaking and body language;[14] (2) study and model outstanding public speakers; and (3) identify and seize every opportunity for deliberate practice.

2.  Be Professional

During my time at large and mid-sized firms, I developed a theory about surviving in corporate legal environments: the trick is to make yourself indispensable to people who control your fate. I know that that sounds obvious and trite, but bear with me. A law firm works as a business only so long as clients hire partners to provide legal services. That is how a firm keeps the lights on; fees are the life blood of a firm. And those fees are paid by clients. This makes a partner’s relationships with her clients precious. Clients are her contribution to the firm’s continued vitality, and her most valuable currency vis-à-vis her peers. Her book of business largely determines her standing within the organization—and her ability to leave if the organization is not managed to her liking. That defines both her professional status and her ability to provide for her family. Client relationships are a huge deal.

But a profitable partner cannot do all the work necessary for clients herself. She needs junior lawyers to shoulder some of that burden. To some extent, every single assignment she delegates is a risk. Will the associate’s work be good enough? Will it be delivered in a way that satisfies the client? So when a partner delegates work to a junior lawyer, she is not acting out of laziness or malice. Instead, she is paying the associate her highest professional compliment: she is trusting him with her clients—her most valued professional assets—and relying on him to deliver the same quality of work that she would provide herself, if she had capacity.

Even after I figured that bit out, I still labored under the misapprehension that my job as a junior lawyer was simply to deliver the best possible work to the client. I was wrong. The trick to surviving in a corporate legal environment is realizing that you have two clients: the actual client, and the senior lawyer who controls the workflow. Your job is to keep both deliriously happy. And the trick to doing that is learning to instill confidence in both, so that they can relax and let you do your job. You do that not only by delivering excellent work, but by doing so in a way that telegraphs that you have things under control.

Let us go back to our hypothetical partner. Say that she has an important client who is involved in high-stakes litigation. She is looking to staff the matter. Two associates have capacity.

Associate One is a tortured genius. He joined the firm after a federal circuit clerkship. He rolls into the office around 11:00, works late, dresses on the shabby fringe of business casual, and waits until the last day of the month to enter his time. Everything about the way that Associate One treats his colleagues suggests that he is surrounded by imbeciles. He delivers outstanding work, but often at the last minute and with minimal communication ahead of time. He is heavily resistant—even resentful—when other lawyers offer criticism. But, to be fair, his work is brilliant and he may be smarter than the lawyers critiquing him. And he has not actually missed a deadline, at least not yet.

Associate Two shows up at work every day at 8:00 a.m., smartly dressed, as if she is ready to head to court. She is a rigorous scheduler, an energetic communicator, and a charming interlocutor. Associate Two calendars deadlines and reminders, and she shares them with the case team. When she is working on a matter, she regularly updates her team members on her progress. Associate Two maintains an upbeat demeanor around the office. She treats people with respect, and generally has a positive disposition. Her work is always good—polished, careful, and always on time—but it is rarely brilliant. She is responsive to constructive criticism.

Who is the partner going to pick for her project?

It is not a hard decision. Associate Two will make the partner’s life easier. She will accept guidance. She will do the work. Will it be brilliant? Maybe sometimes—but it will always be good enough to impress the client and protect its interests. And it will be delivered in a way that lets her supervisor sleep at night.

This type of professionalism is a crucial and underrated skill. It can make up for a significant talent gap between two associates in a cohort. It is also a skill that is easy to master if you approach it consciously. Here are some tips:[15]

If the junior lawyer and the senior lawyer can both perform a task, then it is the junior lawyer’s job. This saves the client money and takes an item off the senior lawyer’s plate. It also further entrenches the junior lawyer in the project, helping to make her indispensable.

Actively seek opportunities to take a larger role in the project. The more that you are doing on a project—and the more burdens that you shoulder on the senior partner’s behalf—the closer you are to being indispensable.

There is no such thing as a draft. Every document submitted to a senior lawyer or client should be as close to perfect as you can make it. If you have questions, include them in brackets or comments. But do not leave gaps in the document or obvious further work to be done.

When setting deadlines, the schedules of the client and senior lawyer always get priority. If a brief is due on Monday, the draft cannot be delivered on Friday afternoon. If either a junior lawyer or a senior lawyer has to work on a weekend, it is the junior lawyer’s job to take the hit. That is unfair, of course. But taking one for the team builds goodwill and helps ensure that you will get future work from the senior lawyer.

Calendar every deadline, along with a reminder. Send invites to the senior lawyer. Let her know that you are on top of things.

Return calls the same day, if not sooner.

Smile, and at least pretend that you are having fun. That goes a surprisingly long way.

One more point: at a law firm, you are always “on”—that is, everything that you do is being noticed and evaluated by senior lawyers. There is no such thing as a quick-and-dirty project. As far as the organization is concerned, everything that you do is a reflection on your quality as a lawyer.

3.  Learn Things Once, the Hard Way

An early mentor of mine, Greg Haley, gave me this advice. One of the blessings of being a junior lawyer is that you actually get to dig into the law. You can use this to your advantage. And you should, as often as possible.

For example, much of the routine work in law firms is done by pulling a template document and modifying it to fit the facts of a current case. That is fine, as far as it goes, and it is often efficient. But there is no rule that says that you have to do things that way. The first time a partner asks you to prepare a rote document, do the actual work, whether you can bill the client for it or not. Read the rules. Read what Wright and Miller[16] or Sinclair and Middleditch[17] have to say. Pull the leading cases. You will gain useful context for the current project, but more importantly, you will build a knowledge base that you can carry with you for the rest of your career. Over time, you will distinguish yourself from your peer group.

4.  Take Yourself (and Your Career) Seriously

This is a tip that I picked up from another mentor, Cordell Parvin. There are 168 hours in a week. Assume that you owe about sixty hours of work per week to your employer—that is, about forty billable hours, which will take an estimated sixty hours to accomplish.[18] Say that you also need to sleep eight hours per night. That is another fifty-six hours. This still leaves fifty-two waking hours.

Here is Cordell’s observation: the way that you spend the sixty hours will determine the quality of your career. The way that you spend the fifty-two hours will determine the quality of your life.

Consider those sixty hours of work. You can spend them just accepting every assignment that comes your way. That is what I did at the start of my career. I thought that I was being a team player, but really I was being a chump. A wiser approach would have been to approach those sixty hours strategically. I will only get about 80,000 hours to spend on my entire career,[19] with more annual hours at the beginning and fewer—not to mention less energy—at the end. So how could I have made the most of those sixty hours in the context of a finite 80,000-hour career?

For starters, I could have begun with the end in mind. What was I trying to accomplish over those 80,000 hours? In other words, where did I want to be at the end of my career, and what did I want my colleagues to say at my retirement party? Once I set those goals, I should have analyzed how to get there, and what benchmarks I needed to hit along the way. Where did I need to be in twenty years? In ten years? In five years? Next year? Next month? Next week?

To maximize my time as an associate, I should have allocated each block of sixty hours accordingly. An example may help to make this all a little more concrete. Say that I am a second-year associate, and my long-term goal is to become the best appellate lawyer in Virginia. I have decided that I will need a statewide reputation and fifty good appeals under my belt by the twenty-year mark. Within five years, I want to have argued five cases before the Fourth Circuit. My job as a second-year associate is to figure out what I can do this year—and this week—to get there.

To begin with, I can critically evaluate my current job and the opportunities that it presents. Is this where I need to be? Should I pursue a clerkship instead? Would I get better experience working for the government? If I am in the right place, what should I be doing? Who are the potential referral sources for the type of work that I want to get, both inside and outside the firm? What am I doing to get in front of those people? Am I making the most of speaking and writing opportunities? What about social media? Should I be doing a blog or podcast? Will the firm sponsor pro bono opportunities that will let me get the type of experience that I want?

Once I have identified the steps to take, my next move is easy. I just need to take them.

A few more thoughts: if a lawyer in the firm controls the type of work that you want to do, approach her and tell her that you would like to work with her. You have absolutely nothing to lose. When presented with new assignments, weigh them against your business plan. Your time and energy are both limited; every time that you say “yes” to a new project, you are also saying “no” to something else. So make sure that you are saying “yes” to the right projects. But do so, obviously, with an eye to your standing in the firm; you cannot very well bill ten hours per week and turn down projects because they are inconsistent with your personal goals.

5.  Protect Yourself While Solving Ethical Problems

Just like everyone else, I took an ethics class in law school. I passed the Multistate Professional Responsibility Examination. I took (and even later taught) the Virginia State Bar’s Harry L. Carrico Professionalism Course. None of that prepared me to resolve ethical problems in the real world. There is a lot more to managing these issues than just doing the research. True, you must get the right answer, but you also have to do so in a way that protects both yourself and your law firm, while preserving the relationships (and sanity) of all involved. I stumbled around in the dark for years before I figured this out. Here is what I came up with:

First, run a thought experiment. If there were no rules of professional conduct or professionalism guidelines, what would you do? If the answer is that you would err on the side of caution—that is, you would not do what you are being asked to do—then that is the end of the analysis. Nobody says that you have to do anything that makes you uncomfortable just because it is allowed by the Rules of Professional Conduct.[20] Those rules set minimum requirements—the ethical floor, not the ceiling. If a course of action that is technically permissible would keep you up at night anyway, do not do it.

Second, do your research. Check the Rules of Professional Conduct[21] and the Legal Ethics Opinions.[22] Run a Google search or two. Figure out the doctrinally correct answer.

Third, if it is possible to do so consistent with your duty of confidentiality, run the scenario by a trusted mentor. Consider not only the strict ethical implications of the proposed course of action, but also its potential reputational effects, both for you and for your firm.

Fourth, if you are still inclined to go forward, contact the Virginia State Bar’s ethics hotline. They accept inquiries by phone or email.[23] Send them an email outlining your situation and your assessment based on the research that you conducted in step two. The Ethics Counsel will either confirm your analysis (in writing), amplify it (suggesting additional possible ways to safeguard yourself and your client), or point out an error in your reasoning.[24] Do what they say, and save that email. It documents your good-faith efforts, and it may come in handy if you ever face a bar complaint.

And there, dear reader, you have it: five simple tips that would have spared me most of the pain that I experienced as a young lawyer. I hope that they serve you well.


     *  Partner, Johnson Rosen & O’Keeffe, LLC. Earlier in the author’s career he practiced with Gentry Locke LLP and Skadden, Arps, Slate Meagher & Flom LLP. J.D., 2002, Harvard Law School; B.A., 1999, College of William & Mary.

        [1].    Bryan A. Garner, The Redbook: A Manual on Legal Style (3d ed. 2013). While The Redbook is essential, The Bluebook is an abomination for all of the reasons that Judge Posner pointed out years ago. See Richard A. Posner, The Bluebook Blues, 120 Yale L.J. 850 (2011). I have been using a version of Judge Posner’s simplified citation system for years, see id. at 854–57, and I have never been called on it.

        [2].    John E. Warriner, English Composition and Grammar: Complete Course (Benchmark ed. 1988).

        [3].    William Strunk, Jr. with E.B. White, The Elements of Style (4th ed. 2000).

        [4].    See, e.g., H.W. Fowler, A Dictionary of Modern English Usage (2d ed. 1965) (a usage guide); Black’s Law Dictionary (Bryan A. Garner ed. 10th ed., 2014) (a legal dictionary).

        [5].    Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008).

        [6].    Mark Herrmann, The Curmudgeon’s Guide to Practicing Law (2006).

        [7].    Mark Herrmann, How to Write: A Memorandum from a Curmudgeon, in The Curmudgeon’s Guide to Practicing Law, supra note 6, at 1–8.

        [8].    Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (3d ed. 2014).

        [9].    Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates (2d ed. 2014).

      [10].    Matthew Butterick, Typography for Lawyers (2010).

      [11].    Stephen King, On Writing: A Memoir of the Craft (2000).

      [12].    William Zinsser, On Writing Well: The Classic Guide to Writing Nonfiction (2006).

      [13].    Steven Pinker, The Sense of Style: The Thinking Person’s Guide to Writing in the 21st Century (2014).

      [14].    See, e.g., Brian K. Johnson & Marsha Hunter, The Articulate Advocate: New Techniques of Persuasion for Trial Lawyers (2010) (giving advice on improving one’s public speaking).

      [15].    Again, I do not make any claim to original thought here. I just do not remember where along the way I picked these up.

      [16].    E.g., 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure (2010).

      [17].    Kent Sinclair & Leigh B. Middleditch, Virginia Civil Procedure (6th ed. 2014).

      [18].    These numbers are absurd and inhumane, but that is a topic for another piece.

      [19].    This is not a remotely original observation. See, e.g., 80,000 Hours, https://80000 hours.org (last visited Nov. 2, 2017).

      [20].    See, e.g., Preamble: A Lawyer’s Responsibilities, Rules of Prof’l Conduct, Va. State Bar, http://www.vsb.org/pro-guidelines/index.php/rules/preamble/ (last visited Nov. 2, 2017) (explaining that while “[m]any of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, . . . a lawyer is also guided by personal conscience and the approbation of professional peers”).

      [21].    Rules of Prof’l Conduct, Va. State Bar, http://www.vsb.org/pro-guidelines/in dex.php/ (follow “Rules of Professional Conduct” hyperlink; then follow hyperlink to appropriate rule) (last visited Nov. 2, 2017).

      [22].    Legal Ethics Opinions Online, Va. State Bar, https://www.vsb.org/site/regulat ion/leos (last visited Nov. 2, 2017).

      [23].    Professional Regulation: Ethics Questions and Opinions, Va. State Bar, https:// www.vsb.org/site/regulation/ethics (last visited Nov. 2, 2017).

      [24].    See id.

Judge Merhige’s Environmental Decisions: Expert Handling of Groundbreaking Environmental Rulings and Complex Federal Jurisdictional Questions

Judge Merhige’s Environmental Decisions: Expert Handling of Groundbreaking Environmental Rulings and Complex Federal Jurisdictional Questions

Jim Vines, Judge Merhige’s Environmental Decisions: Expert Handling of Groundbreaking Environmental Rulings and Complex Federal Jurisdictional Questions, 52 U. Rich. L. Rev. Online 39 (2017).

Click here to download PDF.


Jim Vines *

It is a special privilege for me to contribute to this edition of the University of Richmond Law Review honoring Judge Robert R. Merhige, Jr. Here, I seek to highlight his contributions to United States environmental law. In 1988 and 1989, I was one of two recent law school graduates who clerked for Judge Merhige (“please call me by my first name; it’s ‘Judge’”). The Judge was a larger than life figure. As a federal trial judge, historically important and intellectually challenging cases seemed to find their way into his court in a volume not matched in many other federal district courts. Not surprisingly, his environmental cases were “big” and his rulings reflected his uncommon grasp of the whole of the law.

There is simply no way to talk about Judge Merhige without including anecdotes and typically, some humor. Here is my “environmental” anecdote.

Environmental practitioners who have worked under the federal “Superfund” law or Resource Conservation and Recovery Act[1] (or their State counterparts) on cleanups of land or groundwater contaminated with gasoline residues are aware of the significance of BTEX detected in site samples. Some seasoned environmental lawyers even know what the acronym BTEX means.[2]

Early one morning during my clerkship with the Judge, he brought up the topic of BTEX contamination sua sponte. He was a bit late getting to his chambers, meaning after 7:30 AM, which would have been the “afternoon” if it had been one of us. He came through the door loudly asking if anyone knew how to get gasoline out of a neck tie. He had stopped on the way to work to help a stranded motorist and had splashed fuel on himself after he fetched it for her at a gas station and insisted on pouring it in the tank of her car. As for his soiled necktie, one of us commented that it was a bit early in the day for Molotov cocktails, and that was the end of it. I do hope he disposed of the ruined tie in a responsible way.

I really regret that this episode was as close as I came to working with the Judge on an environmental case. He certainly left his mark on the development of federal environmental jurisprudence in the 1970s, 1980s, and into the early 1990s, but chance made it so that during my year with him, no environmental case came across his docket—unless my co-clerk handled it. The Judge and my co-clerk both knew that I planned on becoming an environmental lawyer, so this would have been very wicked of them.

I first came across Judge Merhige and his environmental jurisprudence during my first year of law school, though in a class not typically thought of as having anything to do with environmental law. My Civil Procedure casebook contained one of the Judge’s rulings in the well-known Kepone litigation. Overall, the Kepone cases were a much publicized group of related criminal and civil lawsuits against a chemical manufacturer in Virginia—Allied Chemical—and a spinoff entity. The Judge imposed a $13,200,000 fine against Allied Chemical for violating the federal Clean Water Act, though he reduced the fine to $5,000,000 after the company agreed to donate $8,000,000 to the Virginia Environmental Endowment Fund—an organization whose purpose is to improve the quality of Virginia’s environment.[3] The settlement produced ancillary litigation over whether the donation was tax deductible, and the Third Circuit ultimately held that it was not.[4]

But my introduction to Kepone was a case addressing class certification under the then (c. 1985) Federal Rules of Civil Procedure governing class action litigation in the federal courts. In Pruitt v. Allied Chemical Corp., watermen from Maryland and Virginia sued Allied Chemical for harm to their livelihood from the environmental contamination of the Chesapeake Bay.[5] Judge Merhige declined to certify these groups of watermen from the two states into a single class.[6] Class certification rulings, save for the lawyers directly involved, are usually not historically significant and can be grounded in fairly prosaic reasoning. But the Judge’s reason for denying to certify this particular class in Pruitt was fairly head-turning—he took judicial notice of the fact that the Maryland and Virginia watermen had been engaged in armed disputes for centuries, including an episode known as the Oyster War of 1785.[7]

A broad survey of Judge Merhige’s environmental jurisprudence reveals interesting jurisprudential aspects apart from his particular rulings on questions of environmental law. For instance, the Judge’s environmental caseload was heavily weighted with federal Clean Water Act (“CWA”) matters. The Judge’s CWA opinions, including their ultimate consideration by the United States Supreme Court, have had a profound impact on the law’s development, interpretation, and, especially, its enforcement.[8]

Perhaps most importantly among his CWA rulings, the Judge held that the CWA did not imply a cause of action for citizens to sue state governments over provisions in their National Pollutant Discharge Elimination System (“NPDES”) (federally authorized effluent discharge) permits, and that 28 U.S.C. § 1983 could not be used to enforce the CWA.[9] The Supreme Court agreed with Judge Merhige on both issues, and, in doing so, significantly impacted citizens’ ability to enforce the CWA’s provisions.[10] On the flip side, Judge Merhige held as a matter of first impression that the CWA permitted citizen suits for wholly past violations of NPDES permits, a position the Supreme Court ultimately reversed.[11]

Perhaps unexpectedly, in light of Judge Merhige’s reputation as the federal judge who desegregated Virginia’s schools, his environmental decisions reflect a strong respect for states’ rights. The Judge was very circumspect with respect to various issues that implicated federalism, including abrogating state sovereign immunity, implying private causes of action in federal statutes like the CWA, allowing § 1983 claims against states to enforce federal laws, interfering with ongoing state proceedings (Younger abstention), finding federal question jurisdiction in mixed claims, and allowing supplemental jurisdiction over state law claims.

On the other hand, the Judge was extremely unsympathetic to individual polluters. The Kepone litigation is a case in point. Another good example is State Water Control Board v. Train, where Judge Merhige held that municipal wastewater treatment works would not be exempt from complying with deadlines for effluent limitations imposed by the CWA even when the Environmental Protection Agency (“EPA”) admitted that many municipalities would be completely unable to comply due to federal funding shortfalls and administrative delays.[12]

Perhaps not unexpectedly, Judge Merhige’s environmental decisions addressed a rather bewildering array of federal jurisdictional and jurisprudential issues in addition to addressing a number of nationally important environmental principles and issues of first impression. The following sections explore this daunting array of interconnected issues sorted out by the Judge over the years.

A.  Younger Abstention

In Kim-Stan, Inc. v. Department of Waste Management, a sanitary landfill operator sued to enjoin Virginia officials from enforcing an emergency special order revoking Kim-Stan’s permit and prohibiting it from accepting waste from out of state.[13] Judge Merhige granted the State officials’ motion to dismiss on Younger abstention grounds. Because there were ongoing State proceedings that implicated important State interests and could have resolved the federal claims, the court abstained from exercising jurisdiction over the case.[14]

B.  Federal Bankruptcy Code Preemption of Environmental Laws

In In re Smith-Douglass, Inc., Judge Merhige, sitting on the Fourth Circuit by designation, addressed the interesting question of when the Bankruptcy Code preempts State environmental laws.[15] Section 554(a) of the Bankruptcy Code allows trustees to abandon income-draining property, but the Supreme Court in Midlantic National Bank v. New Jersey Department of Environmental Protection recognized an exception that trustees “may not abandon property in contravention of a state statute or regulation that is reasonably designed to protect the public health or safety from identified hazards.”[16] In holding that the Midlantic exception should be narrowly construed, Judge Merhige reasoned that the purpose of the Bankruptcy Code is “the expeditious and equitable distribution of the assets,” and the Code preempts state laws that evince contrary policies.[17] Accordingly, the Judge held that the exception only applied where the public health or safety is threatened with imminent and identifiable harm.[18] In the case at hand, the Judge held that the State had not demonstrated an immediate and identifiable harm, and, therefore, § 554(a) preempted the contrary state law provisions, and the trustee was entitled to abandon the property.[19] (It is worth noting that at the time of this ruling, Judge Merhige was deeply immersed in the Bankruptcy Code while jointly presiding with Richmond, Virginia, Bankruptcy Judge Blackwell Shelley over the A.H. Robbins bankruptcy. This bankruptcy resulted from the multitude of tort claims against A.H. Robbins related to the “Dalkon Shield” IUD. I clerked for the Judge shortly after the In re Smith-Douglass, Inc. ruling and enjoyed the incredible learning experience of working closely with him on the Robbins bankruptcy case).

C.  CWA Citizen Suit Provisions

In Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd.,[20] Judge Merhige made the initial ruling in a case that has dramatically impacted citizen enforcement of the CWA. The case addressed the important issue of whether the CWA’s citizen suit provision permits suits for wholly past violations. Judge Merhige held that it did,[21] and the Fourth Circuit affirmed.[22] The United States Supreme Court, resolving a circuit split, held that § 1365 of the CWA does not permit citizen suits for wholly past violations.[23] The Court remanded the case to the Fourth Circuit to consider whether the plaintiffs had also alleged ongoing violations sufficient to confer subject matter-jurisdiction.[24] The Fourth Circuit held that the plaintiffs adequately alleged ongoing violations sufficient for standing purposes, but remanded to the district court to consider whether ongoing violations were proven at trial.[25] Judge Merhige held that they were and reinstated the initial penalty.[26] The Fourth Circuit affirmed that there were ongoing violations but reversed Judge Merhige’s reinstatement of the original penalty because it was based on both past and ongoing violations.[27]

D.  Multiplicitous Counts in Criminal Indictment

In United States v. Allied Chemical Corp., Judge Merhige rejected Allied Chemical’s request that the United States Department of Justice elect which of the 456 counts of the indictment it intended to prosecute, or, in the alternative, that all counts be consolidated on the grounds that they were “multiplicitous.”[28] The Judge held that there was insufficient information to rule that the counts were multiplicitous.[29]

E.  Press Confidentiality

In Gilbert v. Allied Chemical Corp., the defendant subpoenaed a radio station seeking unpublished and unaired information it had on the Kepone cases.[30] Judge Merhige held that the confidential information was privileged and therefore exempt from disclosure, but the non-confidential information was exempt only if it would lead directly to the disclosure of confidences.[31] In the much later case of Stickels v. General Rental Co., the Judge abrogated this approach and adopted a qualified privilege for non-confidential materials acquired by the press in the course of their newsgathering process.[32]

F.  Class Certification in Class Action Litigation

As noted above, in Pruitt v. Allied Chemical Corp., the Judge declined to certify a class of Maryland and Virginia watermen because of the fact that the two groups engaged in armed violence with one another. To the Judge, it seemed clear that the named plaintiffs could not “adequately represent” the interests of all of the putative class members.[33]

G.  Ancillary Jurisdiction

In Adams v. Allied Chemical Corp., Judge Merhige addressed an attorney fee dispute, which arose during the course of a diversity lawsuit. The Judge held that the fee dispute was not sufficiently connected to the diversity suit to justify ancillary jurisdiction and that there was no basis for federal question jurisdiction.[34]

H.  State Tort Law and Economic Damages/‌Implied Cause of Action in Federal Statute

In Pruitt v. Allied Chemical Corp., plaintiffs, who made their livings from the Chesapeake Bay, sued Allied Chemical for its pollution of the Bay with Kepone, and Allied Chemical moved to dismiss for failure to state a claim.[35] Judge Merhige considered whether Virginia tort law imposes liability for indirect economic harm, a question which had apparently never been addressed by the Virginia courts. In a candid, introspective opinion, Judge Merhige held that “indirect” economic damages were not recoverable, but acknowledged the difficult line drawing involved in determining what level of commercial activity was too indirect for recovery.[36] Applying a balancing test of the economic aims of tort liability with other countervailing considerations, like the principle in admiralty law that defendants only pay once for damages inflicted, the court held that boat, tackle and bait shop owners who lost business stated cognizable claims, but the plaintiffs who merely purchased and marketed seafood for commercial fishermen did not.[37] In addition, the court held that admiralty law dictated the same result.[38] The Judge also ruled that the Rivers and Harbors Appropriation Act and the Federal Water Pollution Control Act did not imply private causes of action.[39]

I.  Broad Spectrum of Jurisdictional and Procedural Issues

In James River v. Richmond Metropolitan Authority, a nonprofit corporation sued federal and state officials and agencies seeking injunctive and declaratory relief enjoining the construction of an expressway in Richmond.[40] The plaintiffs alleged violations under the United States and Virginia constitutions and the federal Rivers and Harbors Act (“RHA”), National Environmental Policy Act (“NEPA”), Federal-Aid Highways Act (“FAHA”), National Historic Preservation Act (“NHPA”), the Department of Transportation Act (“DOTA”), and the Administrative Procedure Act (“APA”).[41] Judge Merhige’s opinion reads something like a federal courts and civil procedure treatise, addressing pendant jurisdiction, sovereign immunity, organizational standing, the laches doctrine, the extent of federal involvement in the project, and what makes a water “navigable” for the purposes of the RHA. Ultimately, the Judge refused to hear the defendants’ State constitutional claim, summarily rejected the Fifth, Ninth, and Fourteenth Amendment claims, found that the RHA did not apply because the water body at issue was not navigable, and that the other statutory claims did not apply because there was not sufficient federal action.[42] For a judge considered “activist” by many, Judge Merhige’s reasoning in this emotionally charged case is the picture of judicial restraint:

The protection of our environment and of our places of historical interest are of the utmost importance, yet, the decision as to how to protect them must come from the Congress of the United States and the legislatures of the various states. Where, as here, highway planners meet all of the requirements of law applicable to them nothing further is required.[43]

J.  A Highway Case with a Different Outcome

In Thompson v. Fugate, Judge Merhige enjoined the Virginia State Highway Commission and Secretary of Transportation from constructing a highway through a portion of the plaintiff’s property.[44] The property was a registered historic landmark and had connections to Thomas Jefferson, John Marshall, and other historical figures in Virginia. The Judge held that the project could be enjoined until the defendants demonstrated compliance with NEPA, DOTA, FAHA and NHPA even though the highway was nearly complete.[45] This opinion came after the Fourth Circuit’s holding that the Judge had abused his discretion in failing to enter a preliminary injunction against the condemnation of the property prior to trial.[46]

K.  Federal Common Law, Sovereign Immunity, Pendent Jurisdiction, Tucker Act, Parens Patriae, and the United States Constitution

In Board of Supervisors v. United States, the County of Fairfax, Virginia sued the District of Columbia and certain officials for creating a public nuisance by improperly maintaining the District’s Lorton prison complex in Fairfax.[47] (Judge Merhige heard this case in the Alexandria Division of the Eastern District of Virginia, illustrating his penchant for covering cases in a number of other federal court venues outside of Richmond). First, the court considered whether D.C. was entitled to sovereign immunity, holding that it was not because it was alleged to be exceeding its statutory authority.[48] Second, the court held that, at the motion to dismiss stage, the defendants had not met their burden of showing that the federal common law of nuisance was preempted by federal environmental statutes.[49] Next, the court held that the plaintiff could amend its complaint to show the interstate nature of the alleged pollution stemming from the prison complex, which would be sufficient to give rise to a federal nuisance claim.[50] But the other claim, which concerned local security risks, was based in state common law nuisance, and the Judge doubted that the court should exercise pendent jurisdiction over it.[51] Fourth, the court held that the county could not assert constitutional claims of its residents under the parens patriae doctrine.[52] Finally, the court held that the plaintiff’s Tucker Act claim should be dismissed because there was no implied contract, but that it still could be made out as an element of damages should the plaintiff succeed on its nuisance claim.[53]

L.  Implied Causes of Action in Federal Statutes

In Chesapeake Bay Foundation v. Virginia State Water Control Board, Judge Merhige considered whether the CWA implied a private cause of action.[54] Applying Justice Brennan’s four-factor test in Cort v. Ash, Judge Merhige held it did not and dismissed the action, principally because it would be extremely intrusive into the State administrative process.[55] Notably, Judge Merhige’s restrictiveness in this area parallels the Rehnquist Court’s later signifi-cant tightening of recognition of implied causes of action after Cort.[56]

M.  Section 1983 as the Basis for Suing the State for Violations of CWA

In a subsequent case, Chesapeake Bay Foundation v. Virginia State Water Control Board, the nonprofit plaintiffs sought to amend their complaint following the earlier dismissal, adding the Chairman of the Board as a defendant and asserting 42 U.S.C. § 1983 as the basis for their cause of action.[57] Judge Merhige rejected the plaintiffs’ motion but grappled with an issue of first impression: whether § 1983 can be a cause of action to sue a state for alleged violations of the CWA.[58] In Maine v. Thiboutot, the Supreme Court had given an expansive reading to § 1983 and seemingly sanctioned using the provision as a hook to sue state officials for violations of any federal law.[59] Judge Merhige, however, found that § 1983 could not be used to sue state officials for CWA violations because of the significant federalism issues and judicial burdens it would create.[60] One year later, in Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, the Supreme Court agreed with Judge Merhige and cited his opinion favorably.[61] Later Supreme Court decisions mirrored this narrowing of Thiboutot.[62]

N.  Tension Between NEPA and Law Enforcement Policy

Ely v. Velde was a series of cases addressing the tension between the policies of preservation and conservation in NEPA and NHPA on the one hand, and congressional policies favoring state autonomy in the use of federal funds for law enforcement purposes on the other.[63] Judge Merhige found for the defendant-government officials, holding that officials had reasonably approved grants to a state to fund construction of a penal facility without first completing an Environmental Impact Statement or considering provisions of the NHPA related to federal activity on property listed on the National Register for Historic Places.[64] The Fourth Circuit disagreed and reversed.[65]

O.  Statutory Policy Versus the White House

In Campaign Clean Water, Inc. v. Ruckelshaus, Judge Merhige addressed a provision in the 1972 CWA amendments strongly opposed by President Nixon. Congress passed a water pollution appropriation bill over the President’s veto which allotted $11,000,000,000 for waste treatment plant construction grants for fiscal years 1973 and 1974.[66] But the EPA Administrator announced that, pursuant to the President’s direction, he was only allotting $5,000,000,000 out of the $11,000,000,000.[67] The Judge held that the EPA had abused its discretion and entered a declaratory judgment that the policy was null and void.[68] After the case reached the Supreme Court, the Court agreed that the EPA did not have discretion to allocate less than all the sums authorized by the 1972 CWA amendments.[69]

P.  State Non-Compliance with Federal Environmental Law Due to Lack of Funds

In State Water Control Board v. Train, Virginia’s Water Control Board sued the EPA to obtain relief from compliance with an effluent limitation for publicly owned treatment works imposed by the CWA 1972 amendments.[70] The Board argued that it was not required to comply with the limitation until federal grants were available to underwrite seventy-five percent of the costs.[71] Many municipalities had not received the funds guaranteed to them by the CWA, in part because of administrative delays, but also due to the EPA’s withholding of $6,000,000,000 of funds discussed in Campaign Clean Water, Inc. v. Ruckelshaus.[72] Consequently, the EPA acknowledged that many of the municipalities would not be able to comply with the effluent limitations by the deadline imposed under the CWA. Despite the harsh result, Judge Merhige held that the statute was clear and that the municipalities’ compliance was required regardless of whether the funds were available.[73] As to the Board’s contention that it could be held liable for failing to comply with a standard it could not possibly meet, the court noted that the issue was not currently before the court, but indicated that that might be the unfortunate result, suggesting that “[s]hould this result in fact come about, the fault, if any, lies with Congress.”[74]

Conclusion

Since the emergence of the era of federal environmental regulation, federal district judges have been charged with interpreting the application of federal statutes to a variety of industrial and other activities affecting the environment and human health. Judge Merhige played his role in deciphering these emerging federal laws, but he appears to have handled a disproportionate share of associated issues involving federal jurisdiction, states’ rights, and constitutional issues. Against the notably low statistical odds for Supreme Court grants of certiorari in general, his rulings underwent an almost astonishing level of High Court review. In many instances, the highest court agreed with Judge Merhige’s conclusions. As with many other aspects of his judicial tenure, Judge Merhige’s environmental decisions were extraordinary.


* Partner and Member, King & Spalding LLP, Environmental, Health and Safety practice team. I am substantially indebted to and grateful for the work of Zachary Hennessee, a third-year law student at the Duke University School of Law and future federal judicial law clerk, who compiled an extremely thorough catalogue of Judge Merhige’s environmental cases and articulated numerous fine insights about these rulings and their import.

        [1].    Resource Conservation and Recovery Act of 1976, Pub. L. No. 94-580, 90 Stat. 2795 (1976).

        [2].    “When gasoline is in contact with water, benzene, toluene, ethylbenzene and the xylene isomers (BTEX) account for as much as 90% of the gasoline components that are found in the water-soluble fraction.” F.X. Prenafeta-Boldú et al., Substrate Interactions During the Biodegradation of Benzene, Toluene, Ethylbenzene, and Xylene (BTEX) Hydrocarbons by the Fungus Cladophialophora sp. Strain T1, 68 Applied & Envtl. Microbiology 2660, 2660 (2002) (citations omitted). “BTEX is not one chemical, but are a group of the following chemical compounds: Benzene, Toluene, Ethylbenzene and Xylenes. BTEX are made up of naturally-occurring chemicals that are found mainly in petroleum products such as gasoline.” Bureau of Envtl. Health and Radiation Prot., Ohio Dep’t of Health, BTEX 1 (2016).

        [3].    See Allied-Signal, Inc. v. Comm’r, 63 T.C.M. (CCH) 2672, 2678–79 (T.C. 1992) (describing Allied Chemical’s penalty).

        [4].    Allied-Signal, Inc. v. Comm’r, No. 94-7336, 1995 U.S. App. LEXIS 41283, *26 (3d Cir. 1995).

        [5].    Pruitt v. Allied Chem. Corp., 85 F.R.D. 100, 103 (E.D. Va. 1980).

        [6].    Id. at 104.

        [7].    Id. at 106, 106 n.3.

        [8].    See, e.g., Wiliam Goldfarb, Changes in the Clean Water Act Since Kepone: Would They Have Made a Difference?, 29 U. Rich. L. Rev. 603, 613–32 (1995).

        [9].    See Chesapeake Bay Found. v. Gwaltney of Smithfield, Ltd., 611 F. Supp. 1542, 1545, 1550 (E.D. Va. 1985), aff’d, 791 F.2d 304 (4th Cir. 1986), vacated, 484 U.S. 49 (1987).

      [10].    Gwaltney of Smithfield, Ltd., 484 U.S. at 65.

      [11].    Gwaltney of Smithfield, Ltd., 611 F. Supp. at 1548; see Gwaltney of Smithfield, Ltd., 484 U.S. at 64.

      [12].    State Water Control Bd. v. Train, 424 F. Supp. 146, 155 (E.D. Va. 1976).

      [13].    Kim-Stan, Inc. v. Dep’t of Waste Mgmt., 732 F. Supp. 646, 648 (E.D. Va. 1990).

      [14].    Id. at 652–53 (applying Younger v. Harris, 401 U.S. 37, 53–54 (1970)).

      [15].    In re Smith-Douglass, Inc., 856 F.2d 12, 15–16 (4th Cir. 1988).

      [16].    Midlantic Nat’l Bank v. N.J. Dep’t of Envtl. Prot., 474 U.S. 494, 507 (1986).

      [17].    In re Smith-Douglass, Inc., 856 F.2d at 15.

      [18].    Id. at 16.

      [19].    See id. at 16–17.

      [20].    611 F. Supp. 1542 (E.D. Va. 1985), aff’d, 791 F.2d 304 (4th Cir. 1986), vacated, 484 U.S. 49 (1987).

      [21].    Id. at 1548.

      [22].    Gwaltney of Smithfield, Ltd., 791 F.2d at 306.

      [23].    Gwaltney of Smithfield, Ltd., 484 U.S. at 58–59.

      [24].    Id. at 69.

      [25].    Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 170 (4th Cir. 1988).

      [26].    Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 688 F. Supp. 1078, 1080 (E.D. Va. 1988) aff’d in part, rev’d in part, 890 F.2d 690 (4th Cir. 1989).

      [27].    Gwaltney of Smithfield, Ltd., 890 F.2d at 695, 697.

      [28].    420 F. Supp. 122, 123–24 (E.D. Va. 1976).

      [29].    Id. at 124.

      [30].    411 F. Supp. 505, 507 (E.D. Va. 1976), abrogated by Stickels v. Gen. Rental Co., 750 F. Supp. 729 (E.D. Va. 1990).

      [31].    See id. at 510–11.

      [32].    See 750 F. Supp. at 732.

      [33].    Pruitt v. Allied Chem. Corp., 85 F.R.D. 100, 106 (E.D. Va. 1990).

      [34].    Adams v. Allied Chem. Corp., 503 F. Supp. 253, 255–56 (E.D. Va. 1980).

      [35].    523 F. Supp. 975, 976 (E.D. Va. 1981).

      [36].    See id. at 979–80.

      [37].    See id. at 979–82.

      [38].    Id. at 980–82.

      [39].    Id. at 982.

      [40].    359 F. Supp. 611, 615–16 (E.D. Va.), aff’d, 481 F.2d 1280 (4th Cir. 1973).

      [41].    Id. at 616–18, 622.

      [42].    Id. at 623, 628, 636, 640–41.

      [43].    Id. at 641.

      [44].    347 F. Supp. 120, 121, 128 (E.D. Va. 1972).

      [45].    Id. at 125–28.

      [46].    Thompson v. Fugate, 452 F.2d 57, 58 (4th Cir. 1971).

      [47].    408 F. Supp. 556, 559 (E.D. Va. 1976), appeal dismissed without opinion, 551 F.2d 305 (4th Cir. 1977).

      [48].    See id. at 561.

      [49].    Id. at 561–62.

      [50].    Id. at 562.

      [51].    Id. at 565.

      [52].    See id. at 566–67.

      [53].    Id. at 567.

      [54].    495 F. Supp. 1229, 1234 (E.D. Va. 1980).

      [55].    Id. at 1234, 1237–38 (citing Cort v. Ash, 422 U.S. 66, 78 (1975)).

      [56].    See, e.g., Alexander v. Sandoval, 532 U.S. 275, 293 (2001) (holding that no private right of action exists under Title VI to enforce regulations promulgated under § 602 of Title VI).

      [57].    501 F. Supp. 821, 823 (E.D. Va. 1980).

      [58].    See id. at 825, 830.

      [59].    See 448 U.S. 1, 9 (1980).

      [60].    Chesapeake Bay Found., Inc., 501 F. Supp. at 826–28.

      [61].    453 U.S. 1, 20–21 (1981).

      [62].    See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273, 290 (2002).

      [63].    See Ely v. Velde, 321 F. Supp. 1088, 1090, 1094–95 (E.D. Va.), aff’d in part, rev’d in part, 451 F.2d 1130 (4th Cir. 1971); Ely v. Velde, 363 F. Supp. 277, 278–79 (E.D. Va. 1973).

      [64].    Ely, 321 F. Supp. at 1090–91, 1094–95.

      [65].    Ely, 451 F.2d at 1139.

      [66].    Campaign Clean Water, Inc. v. Ruckelshaus, 361 F. Supp. 689, 692 (E.D. Va. 1973).

      [67].    Id.

      [68].    Id. at 700.

      [69].    See Train v. Campaign Clean Water, Inc., 420 U.S. 136, 137–38 (1975).

      [70].    424 F. Supp. 146, 147 (E.D. Va. 1976).

      [71].    Id.

      [72].    See Campaign Clean Water, 361 F. Supp. at 692.

      [73].    State Water Control Bd., 424 F. Supp. at 156.

      [74].    Id. at 156 & n.13.

css.php